A legal analysis of the Toronto Maple Leafs’ club elected arbitration case with Jonathan Bernier.

In mid-June, the Toronto Maple Leafs filed for Club-elected salary arbitration with Jonathan Bernier, pursuant to Article 12.3 of the CBA. Although both sides insist that talks remain amicable, it’s pretty clear that the Leafs aren’t certain that Jonathan Bernier figures into their long-range plans. Instead of working toward the multi-year deal that the player would no doubt prefer, the club has decided to roll the dice in club-elected salary arbitration and to let the chips fall where they may.

With Bernier’s arbitration scheduled for July 31st, let’s take a look at what might transpire if the arbitration goes ahead.

First off, there is a common misconception that by filing for Club-elected salary arbitration pursuant to Article 12.3, NHL clubs protect themselves from having an Offer Sheet extended to their player, under Article 10.3. This is partly, but not entirely, true. In fact what Article 10.2(a)(i)(B) states is that the player will not be eligible to sign an Offer Sheet, except as provided by Article 12.3(a).

For its part, Article 12.3(a)(iv) provides that a player who is subject to a Club-elected salary arbitration is free to negotiate and sign an Offer Sheet, so long as they do so by 5:00pm New York time on July 5th. If a player does in fact sign an Offer Sheet by 5:00pm New York time on July 5th, the club’s election for salary arbitration will be void ab initio; or, in other words, will be treated as if it never occurred. So, while Bernier is no longer able to wield the leverage associated with a looming Offer Sheet over the Leafs, he was actually free to do so until 5:00 pm on July 5th.

If Club-elected salary arbitration didn’t entirely protect them from the spectre of an Offer Sheet on Bernier, why else might Toronto have filed? For that we have to look to Article 12.3(a)(i), which allowed the club to opt for Club-elected salary arbitration in lieu of extending Bernier a Qualifying Offer, in order to maintain his Group 2 Restricted Free Agent status.

Pursuant to Article 10.2(a)(ii)(C), if the Leafs had extended Bernier a Qualifying Offer, they would have had to match 100% of last year’s actual salary of $3.4 million (all figures in USD). As a result of opting for Club-elected salary arbitration, Article 12.3(a)(ii) provides that a salary arbitrator could award Bernier as little as 85% of last year’s salary, or $2.89 million.  In negotiation terms, this means that the “zone of agreement” now begins at $2.89 million, rather than $3.4 million.

Generally, Article 12.9(c) would allow Jonathan Bernier (as the party being brought to arbitration) to elect whether the awarded contract would span one or two years. However, Bernier is eligible to become a UFA next offseason, so the arbitrator will only be permitted to award a one year contract. Barring a negotiated agreement – either before arbitration or prior to July 1st, 2016 – both Jonathan Bernier and James Reimer will be UFAs on July 1st, 2016.

Since the Leafs appear to have decided that the 2015-16 will be a swim-or-cut-bait season for Bernier anyway, it simply makes sense to roll the dice on a one-year award that could come in cheaper than what they could ultimately garner in a negotiation with Bernier.

As I’ve described in a previous article, during the arbitration the player and the club will be permitted to lead evidence about Bernier’s statistical performance in previous seasons and also be allowed to lead evidence about allegedly comparable players’ performance for the sake of comparison. The comparison evidence isn’t unlimited, however, and Article 12.9(g)(iii)(A) states that the player and club are only allowed introduce evidence of contracts that were signed when the comparator player was also a Group 2 Restricted Free Agent.

Also, as of this year both the club and the player are permitted to table advanced statistics in support of their arbitration case. Since I’ve never been confused with a mathematician, I’ve stuck to the traditional goaltending stats in compiling a comparator group for Bernier, but I invite spirited discussion if anyone disagrees based on advanced statistical comparisons.

Although it’s conjecture on my part, I’d guess that the list of comparators for Bernier’s arbitration hearing could include, or will require a consideration of (at least), the following goaltenders to create a range of salaries; keeping in mind that Reimer’s salary (if not his performance) falls below the minimum possible range for Bernier.

Jonathan Bernier Comparables

(Regular Season)
GPWLOTGAASP (%)SOComparator Contract
Years & AAV
James Reimer
Current cap hit $2.3 million
Career at point deal was signed1406548152.850.91411
Season deal was signed (2013-2014)34121613.290.91112 x $2.3 million
Martin Jones
Current cap hit $3 million
Career at point deal was signed34161121.990.9237
Season deal was signed (2014-2015)154522.250.9063 x $3 million
Cory Schneider
Current cap hit $6.0 million
Career at point deal was signed683820420.9284
Season deal was signed (2011-2012)3320811.960.93733 x $4.0 million
Steve Mason
Current cap hit $4.1 million
Career at point deal was signed300131119342.790.90723
Season deal was signed (2013-2014)61331872.50.91743 x 4.1 million
Sergei Bobrovsky
Current cap hit $7.425 million
Career at point deal was signed1216334162.330.917
Season deal was signed (2012-2013)382111620.93252 x $5.625 million
Tuuka Rask
Current cap hit $7 million
Career at point deal was signed1386645162.020.92716
Season deal was signed (2012-2013)361910520.92938 x $7 million
Braden Holtby
Expiring deal for $1.85 million
Season deal was signed (2014-2015)734120102.220.9239Awaiting Arbitrator’s Decision. Hearing set for July 23rd, 2015.
Jonathan BernierCareer1757667202.630.9169
Current Season58212872.870.9122Expiring Deal 2 x $2.9 million

Coming off a below-par season, in which his goals against average ballooned, and his save percentage dropped, Bernier is admittedly not in the type of bargaining (or arbitration) position he’d like to be in. Had he been able to duplicate his stats from the ’13-’14 season (2.66 GAA, 0.923%), he’d be in the same realm (if not exactly the same room) of discussion as Braden Holtby. As it stands, however, Holtby’s ’14-’15 season has separated him from Bernier, and you have to figure that whatever he is awarded following his July 22nd arbitration will stand significantly above Bernier’s award.

So, what kind of award might Holtby get following his arbitration? Heading into arbitration it has been reported that the Washington Capitals have tabled an offer of $5.1 million, while Holtby has countered with an ask of $8 million. Referencing the chart above, Holtby’s ask is too high, but that’s to be expected; you might as well put your best foot forward since NHL salary arbitration doesn’t penalize unreasonable proposals the way the MLB’s does.

Holtby’s career statistics compare favourably to Bobrovsky’s at the time that he signed his last deal following the 2012-13 season ($5.625 million AAV x 2 seasons). However, it should be noted that, during the 2012-13 season, Bobrovsky was both a First Team All-Star and awarded the Vezina Trophy.

Furthermore, Holtby’s career and present season statistics trail Tuuka Rask’s career and 2012-13 season (when his deal was signed) statistics in every major statistical category. For his part, Tuuka Rask has won a Stanley Cup, and been named a First Team All-Star and been awarded the Vezina Trophy. Rask is currently in the midst of a contract that pays him $7 million AAV for 8 seasons. In my view, there is no defensible reason that Holtby should earn as much or more than Tuuka Rask.

The question is, where does Holtby fit between $5.1 million and $6.9 million?

In view of the facts I’ve reviewed, and in considering both Holtby’s better career numbers and the inflationary nature of NHL salaries, my guess is that he’s awarded a deal slightly above Bobrovky’s 2012-2013 deal, which would pay him between $5.8 and $6.0 million, for either one or two seasons depending on what is elected. For what it’s worth, a deal in this range would put him roughly in line with Cory Schneider, whose contract cannot be raised in arbitration but whose performance can be considered in roughly the same breath as Holtby.  In other words, it’s a fair deal.

Let’s now turn to Bernier.

Accepting that Bernier is presently in an echelon of goaltenders below Holtby – and in reviewing the chart above – it would appear that Bernier should fall on the lower end of the range between Steve Mason’s $4.1 million and Sergei Bobrovky’s former deal of $5.625 million. If I were the salary arbitrator, and Braden Holtby had just received an award of between $5.8 and $6.0 million, I’d be inclined to award Bernier between $4.4 and $4.75 million, with a likely award of $4.6 million in view of his favourable comparison to Mason.

Accordingly, in my view the likely outcome of the Bernier arbitration is an award of between $4.4 and $4.75 million – likely around $4.6 million – for the 2015-16 season. And this is where it becomes interesting. Looking at Reimer and Bernier’s career numbers, and considering that Bernier has been afforded (in my view) the better opportunities to succeed since arriving in Toronto, do the Leafs view Bernier as being between $2.1 and $2.45 million per season (or more, assuming at least one of them is re-signed by the end of 2016) better than James Reimer, or might the organization consider that money better invested elsewhere moving forward?

Food for thought.

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Elliot is a litigator, media and sports lawyer working downtown Toronto at Bersenas Jacobsen Chouest Thomson Blackburn LLP. He completed his articles at the Toronto office of a national full-service firm before leaving to pursue a media, sports and litigation practice. Elliot currently teaches a negotiation course entitled “Lawyer as Negotiator” at Osgoode Hall Law School, where he graduated in the top 6% of his class, and was a recipient of the McMillan LLP Scholarship. He has written extensively on negotiation, mediation and alternative dispute resolution, and his paper on collective bargaining in the National Hockey League was published in Volume 19 of the Sports Lawyers Journal. Elliot currently represents national level amateur athletes involved in sports related disputes through the Sports Dispute Resolution Centre of Canada. Elliot can be reached at Follow him on twitter